Reproductive freedom

The Supreme Court earlier this week stayed enforcement of key provisions of HB2—Texas’ sweeping anti-abortion law—pending the Court’s decision whether to hear an appeal in the case. Only 9 abortion clinics would have remained open in the state had the law gone into effect leaving over 1.3 million women of reproductive age more than 100 miles from the nearest abortion clinic.

The Fifth Circuit’s Unsound Reasoning

Prior to the Supreme Court’s decision, the Fifth Circuit had overturned most of a district court’s decision striking down this dangerous requirement. The law requires that abortion providers obtain admitting privileges at a hospital within 30 miles of the abortion clinic and the requirement that clinics providing abortion services meet the standards for ambulatory surgery centers. The Fifth Circuit also held that the requirements could be applied to the sole abortion provider in El Paso, Texas because women in that region would be able to travel to an abortion provider in Santa Teresa, New Mexico. However, the Court did enjoin the state from requiring the sole abortion provider and clinic in the Rio Grande Valley to comply with the admitting privileges requirement and two of the requirements for ambulatory surgery center.

These restrictions, often called targeted regulations of abortion providers or TRAP laws, are opposed by major medical organizations including the American College of Obstetricians and Gynecologists (ACOG) and the American Medical Association (AMA) because they “imposes[] government regulation on abortion care that jeopardizes the health of women.” As both ACOG and the AMA note, abortions are an extremely safe procedure and complications requiring hospitalization are incredibly rare. There is no medical reason to require abortion providers to have admitting privileges nor is there any reason for abortion facilities to comply with more stringent requirements than other medical facilities that perform procedures with similar, or even greater, risks.

Yet in upholding the abortion restrictions, the Fifth Circuit ignored the medical evidence, stating that the district court erred in weighing the burdens imposed by the restrictions against the medical efficacy of the restrictions. The Supreme Court has never upheld a law that limits abortion services without first establishing that the law furthers a valid state interest. In addition, both the Ninth and Seventh Circuits have held that the courts must “weigh the burdens against the state’s justification, asking whether and to what extent the challenged regulation actually advances the state’s interest.” Such an inquiry is necessary to determine whether the restrictions impose an undue burden on a woman’s constitutionally protected right to abortion. As the Supreme Court stated in City of Akron, “The existence of a compelling state interest in health . . . is only the beginning of the inquiry. The State’s regulation may be upheld only if it is reasonably designed to further that state interest.”

Texas’Abortion Restrictions Threaten Women’s Health

Although the stay is good news for Texas women, it doesn’t undo the damage done by other abortion restrictions including provisions of HB2 that have already gone into effect. Since 2013, when HB2 was passed, more than 20 abortion clinics in the state have closed. As a result of these closures, many women seeking abortions were turned away from clinics and some of those women were unable to obtain abortions.

"Liberty finds no refuge in a jurisprudence of doubt," the famous first line of the joint opinion in Planned Parenthood v. Casey, sounds more than a little ironic following the Fifth Circuit's latest endorsement of the unrelenting anti-abortion campaigns conducted by the elected leaders of the states within the circuit. Liberty of reproductive choice finds no refuge in the Fifth Circuit.

Unless stayed by the Supreme Court, the recently-decided Whole Women's Health v. Cole will soon close three-quarters of the abortion clinics left in Texas. Where there were 41 clinics less than two years ago, there will soon be as few as eight in a state of 27 million people. The disappearing clinics can't meet the law's requirements that their doctors have admitting privileges at local hospitals or that the clinics be retrofitted as mini hospitals themselves. There is no evidence that either regulation contributes to the health or safety of abortion patients. But the state justified both requirements as serving its interest in protecting women's health, and the Fifth Circuit, invoking Casey and Gonzales v. Carhart, accepted the state's claim at face value.

In a forthcoming article in the Yale Law Journal, we argue that Casey and Carhart require more: that courts must examine how effectively a health-justified regulation actually serves the state’s asserted health interests in order to determine whether the burden it imposes on women’s access to abortion is undue. On this analysis, a roadblock statute of the kind the Fifth Circuit recently upheld is plainly unconstitutional. We demonstrate this, not only through the language of Casey/Carhart, but also through an understanding of the compromise the undue burden framework represents.

Recall that, in neither overturning nor wholly reaffirming Roe v. Wade, Casey authorized government to take steps to protect potential life throughout a woman's pregnancy, but only by means of persuading a woman to forego abortion and become a mother. “[T]he means chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it.” Thus, Casey upheld a 24-hour waiting period and a mandatory counseling requirement, while striking down a law requiring married women to notify their husbands of their intention to terminate a pregnancy. The line Casey drew—allowing the state to persuade a woman to choose childbirth, but forbidding the state to "hinder" her choice of abortion—is one that protects women's dignity, a value as much at the core of the Casey compromise as the protection of prenatal life.

As the U.S. Supreme Court considers taking up another case related to abortion rights, now is the time to reexamine the old-chestnut narrative that abortion rests solely on a tenuous right to privacy and take heed that the Court ‒ yes, this Court ‒ has a long track record of protecting not only privacy but also the liberty that is part of such deeply personal decision-making.

Over the last several decades, a popular, but inaccurate, narrative has taken hold about the constitution and abortion. Many argue that the right to privacy, set out in Roe v. Wade in 1973, is the sole constitutional protection for a woman's right to end a pregnancy. But this analysis rests on a limited and restrictive understanding of the law.

The right to abortion is grounded in the Fourteenth Amendment, which protects all of us from undue government interference with our liberty interests. More than 20 years ago, the Supreme Court made this clear when it reaffirmed the constitutional right to abortion in Planned Parenthood v. Casey. There, the Court explained that this right was rooted in a woman's Fourteenth Amendment liberty right, which covers decisions about marriage, procreation, contraception, family relationships, child rearing and education.

In the words of the linchpin justices, Souter, O'Connor and Kennedy:

These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.

At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

For those who attended, the 2015 ACS National Convention was not only an opportunity to catch up with old friends, make new connections, and obtain CLE credits; it was also a time to reflect upon the important work that attorneys do every day and gain inspiration for the road ahead. Speakers from across the country and from diverse professional backgrounds delved into the issues of the day, including voting rights, women’s access to reproductive health care, LGBT rights and marriage equality, access to counsel, and more. Here are some highlights with links to high-quality video for those who missed the live event.

Stephen Bright, president and senior counsel at the Southern Center for Human Rights, received a stirring round of applause when he encouraged students and young lawyers to represent unpopular clients, saying “we need to see the kinds of injustices that got . . . people where they are.” In attendance with Mr. Bright were Theo Shaw, one of the exonerated “Jena 6” who is now on his way to law school on a full scholarship, and Jarrett Adams, an exoneree who graduated from law school and will soon begin clerking for the court that exonerated him.

Wendy Davis, women’s rights crusader and a former state Senator from Texas, discussed how rampant voter suppression has led to bad policies in her state, particularly concerning access to reproductive health care. “Women who lack the means to manage their fertility lack the means to manage their lives,” she declared. “It is just that simple.”

Former U.S. Attorney General Eric Holder called for automatic registration of all eligible voters in the U.S., stating that “the ability to vote is a right, it is not a privilege.” He decried efforts to make voting less accessible, explaining that in-person voting fraud is very rare and no such widespread schemes have been detected.

U.S. Representative Hakeem Jeffries discussed the ongoing need to address faulty police practices, including so-called “taxation by citation,” “stop and frisk,” and “broken windows” tactics that disproportionately target low-income people and communities of color.

U.S. Supreme Court Justice Ruth Bader Ginsburg drew laughs and applause during her conversation with California Supreme Court Justice Goodwin Liu. Speaking about her groundbreaking career, she said “I don’t think the meaning of feminism has changed,” it has always meant “girls should have the same opportunity to dream, aspire, achieve . . . as boys.” It’s about “women and men working together to help make society a better place.”

*This post is part of ACSblog’s symposium honoring the 50th anniversary of Griswold v. Connecticut.

Fifty years ago yesterday, the United States Supreme Court issued a ruling that forever changed the legal landscape of our right to plan our families and make private decisions that are fundamental to our lives. The 1965 case, Griswoldv. Connecticut, found that married couples have a constitutional right to obtain and use birth control when planning their families, free from antiquated laws that criminalized their doctors and prevented them from making personal decisions about when and whether to have children.

Griswold’s recognition of a constitutional right to privacy was a first step towards the Court’s subsequent decisions in Planned Parenthood v. Casey and Lawrence v. Texas, which found the right to liberty under the Fourteenth Amendment protects a broad set of liberty rights ― including the rights to bodily integrity, family decision making, and personal dignity and autonomy ― as well as privacy.

But the story does not end there. Far too many American women still face an uphill battle when trying to plan their families ― including efforts by politicians to choke off women’s access to emergency contraception and defund family planning clinics which provide low or no cost birth control.

Political hurdles such as these are especially high for women living in poor, rural, and immigrant communities ― where access to any health care services can be sparse and the cost of contraception could mean the difference between making the rent and putting food on the table. And when women don’t have access to reproductive health care, the impact is clear: Nearly half of all pregnancies in the U.S. are unintended or mistimed ― one of the highest amongst developed nations in the world.